Selling Land-locked Property

question

We purchased 80 acers of property in1987. It is landlocked. The easement for the driveway was to run with the land forever. Now we are being asked to share this driveway. The driveway winds through the property and we know we are driving on their land just a few feet based on a survey. The only way to reach our land is this easement. Should we go to court? What do you think of a private road agreement?

answer

The facts aren't really clear and there are a host of complex issues. You really are going to need to hire a local real estate attorney that has experience dealing with these issues (not just performing simple house closings). Let's discuss some of these issues because they are all complex and interesting.

First, you should review the documents you received when you purchased the property (often called a closing binder). What does the title report say about the easement and access? What does the deed say? This will be an instructive starting point. If you were granted appropriate access to the property in the deed, or a separate easement agreement (the title report should address these) then there should not be an issue now, but apparently there is.

You should also review your title insurance policy with your attorney. What does it insure for? If there is a problem and you are insured that would obviously be helpful.

As mentioned, the facts are not fully clear from your question, but depending on the circumstances, there may be another possible solution called "adverse posession". If you openly used the drive way on their property since 1987 you may have obtained the ownership over the couple of feet of property of your neighbor that your driveway crosses. Adverse posession is a rule that can provide that if you openly and notoriously use land for more than 10 years the owner cannot claim that the property involved is not yours. The rules differ significantly from state to state so you'll need a knowledgeable local real estate attorney to evaluate that issue.

A private road agreement is discussed at some length in another Q&A in the real estate section of this website so we're not going to repeat all the details here. However, for a private road agreement to make sense your neighbor would also need to use the same road as you. The details of why you are being asked to share the driveway are not clear. But some type of agreement that reasonably protects everyone is likely to be better than a court battle.

If the attorney that represented you when you purchased the property did not address these issues you may have a beef with him or her, but the statute of limitations on a malpractice claim may have long run. You'd have to investigate that with a local attorney that specializes in litigation. However, if you can resolve the issues with an agreement with the adjacent land owner, that would likely be the best result.

You face a number of complex issues and will need help sorting out the specific facts before you can address them. Get a good local real estate lawyer to help you out.

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